E-Verify's New Lock ~ Like it or Not, This is a Big Deal!By Nici Kersey

At around 3:00 eastern time on Monday, my (obnoxiously self-important) inbox exploded. Ping! Ping! Ping! it said. Look at me! I’m bringing you important messages about stuff! Ping! Ping! Ping!Who died? I thought, then wished I could un-think. Maybe it’s good news. I’ve been selected as an extra for the next Hunger Games movie? Or maybe Cookie Monster did something awesome on Facebook (again). Nope. This time, it was USCIS with an exciting announcement about E-Verify’s latest enhancement. One e-mail was from USCIS. The dozens of other messages were from colleagues, clients, and friends spreading the news. It’s like E-Verify got implants, I thought, then wished I could un-think. Yes, the most exciting news in my social circle (aside from new photos circulating of Angelo that suggest he may be starting a town car service) has to do with E-Verify. I know that this is lame. Despite the rare incidents (like one of my clients semi-publicly calling me “Chick Norris”) that make me feel hip and cool, I have embraced my nerdiness. Here’s the announcement. (The E-Verify announcement. Not the Paparelli Town Car Grand Opening announcement.)

The enhancement “enables USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify.” What does this mean? It means that E-Verify is actually getting better at doing what it’s supposed to do: verify employment authorization. Since its inception, one of the biggest weaknesses of the system has been that it cannot detect identity theft. So long as an employee provided someone’s real data, E-Verify would return an “employment authorized” result, even if that data belonged to the person’s brother, cousin, father, my daughter, or a complete stranger. Will that still happen? Sure. But not as often. It’s not yet clear what the criteria are for locking an SSN, which is why my implants analogy is appropriate: Will the enhancement pass as genuine, actually improving E-Verify, or will it prove to be more trouble than it’s worth, getting in everyone’s way? If 25 people suddenly get jobs in the Chicago area, and they all have the same name and SSN, the latest announcement suggests that E-Verify would lock that SSN and would require each employee who used it to either come forward with proof that he/she is the “Real Slim Shady” (viewer discretion is advised) or to effectively abandon his/her job. But will it go too far? Our bank locks my husband’s debit card every time he tries to make a purchase more than 5 miles from our home. This prompts mass hysteria, as we move so frequently that the security questions he is asked by the bank seem like advanced existential philosophy questions. The name of the street where your doctor’s office is located? Neighbor’s dog’s name? Your boss’s favorite holiday dish? (I’m going to start answering every security question with the word Pumpkin.) The e-mails from my colleagues were mixed. One said, “This will be all kinds of fun,” dripping with sarcasm. Most clients were excited about the news, though they aren’t looking forward to the increase in mis-matches that they will have to resolve. All of my fake ID vendor buddies, of course, hated the news. (Dear NSA, I hope you are well. This is a joke. Love always, Nici.)Like it or not, this is a big deal. It means that we are one step closer to a national ID card and a system in which we can “lock” our own SSNs and identities so that others cannot use them to obtain credit and/or jobs. It means that people may find out sooner when their own identities have been compromised. Calls to the FTC will probably increase. It confirms that the federal government continues to work toward enforcement and deterrence, even if comprehensive immigration reform really has died. (We’re not getting any carrots here, just sticks.) It proves that we are (still) moving toward a law requiring that employers use E-Verify nationwide. It means that it will become more expensive to get a good fake identity. Those ID sellers who care about their reputations (yes, their reputations for being really good criminals) will have to work harder to satisfy the market, and fake cards are likely to become more expensive. (And there will be a greater demand for cheap, bad cards too, as people may have to buy several cards/identities before one works.) It may also add to the increasing paranoia of people like my father, who looked into having OnStar removed from his vehicle due to his concern that the government might be using it to spy on him. I implore you to not tell him about this, or my next visit home may find my parents cooking all of their meals over an open flame in the back yard. For employers, I offer the following suggestions:

If you already use E-Verify, consider a training session for your team to ensure proper use of the system and to update them on this new development. Focus on non-discrimination training.

Review your immigration policies and update them as appropriate.

Make sure you have a protocol in place for handling “tips” about your employees’ work authorization (or lack thereof), as this is likely to lead to calls/e-mails/letters from the “Real Slim Shady” alleging that one of your employees is working under his name. (If your workforce is unionized, however, first check the collective bargaining agreement and talk to your labor counsel -- Seyfarth Shaw's are the best, and Angelo can introduce you.)

Continue to monitor E-Verify requirements. Consult with immigration and labor counsel about the pros and cons of registering before it becomes mandatory.

by Cyrus D. Mehta, ABIL LawyerThe Insightful Immigration BlogInDelays for Overseas Spouses of US Citizens Seeking Green CardsI reported about the slowdown in the processing of I-130 petitions filed by US citizens on behalf of immediate relatives, such as spouses, minor children and parents, who are outside the United States. As a result of widespread concern about the delays, the USCIS seems to have reacted positively and sent the followinge mailto its stakeholders:From: U.S. Citizenship and Immigration Services [mailto:uscis@public.govdelivery.com] Sent: Wednesday, November 20, 2013 3:38 PM Subject: USCIS Message: Update on the processing times of Form I-130s filed by U.S. citizens for their eligible immediate relativesDear Stakeholder,U.S. Citizenship and Immigration Services (USCIS) has received communications from the public expressing concerns regarding extended processing times for Form I-130, Petition for Alien Relative, filed by U.S. citizens for their eligible immediate relatives. USCIS provides information below in response to the concerns expressed.USCIS is ever-mindful of the need to process a U.S. citizen’s immediate relative Form I-130 carefully and expeditiously. The need is defined by the immigration system’s goal of preserving family unity. It is for this fundamental reason that USCIS has been focused on addressing delays in the processing of these Forms I-130 for several months.Through concerted efforts, USCIS is now adjudicating U.S. citizens’ immediate relative Forms I-130 filed as early as February 2013. This is a significant step forward, as previously published guidance reflected the processing of these Forms I-130 filed in October 2012. Furthermore, USCIS expects the processing of these Forms I-130 to be increasingly timely in the ensuing weeks, culminating in the return to an average processing time of five months for these Forms I-130 by May 2014.USCIS has focused on these Forms I-130 for the very reason that affected members of the public have expressed their concerns; the importance of family unity. Last month, in an effort to expedite the adjudication of these cases, USCIS began transferring stand-alone Forms I-130 filed by U.S. citizens for their immediate relatives from USCIS’s National Benefits Center to its Nebraska, Texas, and California Service Centers. This shift improves USCIS’s ability to adjudicate the cases in a timely manner.When You Receive a Notice of Transfer of Your CaseIf your case was transferred, USCIS will send you a notice listing the transfer date and where your case will be processed. Your original receipt number will not change and this will not further delay the processing of your case. USCIS will take action on your case within 60 days of the transfer date listed in your notice.How to Track the Status of Your CaseWe have recently updated the USCIS website at www.uscis.gov<http://www.uscis.gov/> with processing times for Form I-130 cases filed by U.S. citizens for their eligible immediate relatives. Please check the processing times<https://egov.uscis.gov/cris/processTimesDisplay.do> for your petition before inquiring about your case. If your case is transferred to another USCIS office, you should refer to the processing times for the office that has received your case.You can check the status of your case at www.uscis.gov<http://www.uscis.gov/> by entering your receipt number in the “Check Status<https://egov.uscis.gov/cris/Dashboard/CaseStatus.do>” field. Additionally, you can sign up to receive automatic case status updates<https://egov.uscis.gov/cris/jsps/selectusertype.jsp;jsessionid=bacEczm0-YrdshKqQwGgu> by email as your case is processed. If you have not received a decision on your case within the published processing time, you may submit an inquiry using e-Request<https://egov.uscis.gov/e-request/Case.do> or contact the National Customer Service Center (NCSC) at 1-800-375-5283. For TDD hearing impaired assistance, please call 1-800-767-1833. When making any case status inquiries, you should reference your original receipt number and indicate that your case was transferred to a new location.If you have filed a Form I-130 and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.If you move while your case is pending, you can change your address on the USCIS website<https://egov.uscis.gov/crisgwi/go?action=coa> or contact the NCSC so that USCIS can notify you of any further action on your case. It is important that you notify USCIS of any change of address as soon as possible after moving.We appreciate the concerns that members of the public have expressed on this important subject. We are mindful of those concerns and are addressing them with great diligence.Kind Regards,USCIS Public Engagement Division It is indeed welcome news that USCIS is endeavoring to speed up the processing of I-130 petitions of US citizens, and restore the original processing times of five months or less. While the granting of immigration benefits is contentious in today’s political environment, seldom dispute the ability of a US citizen to swiftly bring into this country a foreign national whom he or she has married overseas. The number of US citizens who can file I-130 petitions on behalf of spouses has recently expanded after Section 3 of the Defense of Marriage Act was declared unconstitutional in United States v. Windsor, thus enabling US citizens to also file I-130 petitions on behalf of same sex spouses. These spouses were unjustly deprived of a benefit for years on end as a result of an unconstitutional statute, and they should not be required to wait that much longer for the I-130 petition to get approved.

The last few weeks have witnessed severe shocks to the health care system known as Obamacare. The President has issued mea culpas for the not-ready-for-prime-time web site, Health.gov, and for his campaign promise to Americans that if they liked their health insurance plan, they could "keep it. Period." Americans who've lost their preferred health plan have also experienced shocks, of the sticker variety, when they learn the price of replacement coverage. Viewers of Washingtonian pratfalls who look at Beltway antics through the prism of immigration are neither surprised nor amused. There is no surprise to immigration stakeholders that a government web site intended to transform the way benefits requests are managed would fail, for we can spell "Transformation" and "ELIS" -- two immigration software programs with scads of dollars spent and little tangible product to justify the pathetic bang for the buck. We are also little amused about promises broken, like the one where a newly elected President would address comprehensive immigration reform during his first year in office. When it comes to immigration, the President's effort might better be dubbed, IfOnlyObamaCared. To be sure, he's tried the bully pulpit with no tangible success in the recalcitrant House. But squawking is not PIPsqueaking -- a pragmatic and tangible way for the President to grant the 11 million undocumented among us respite from deportation through expanded use of Parole-in-Place or PIP, the discretionary power of the President under Immigration and Nationality Act (INA) § 212(d)(5)(A) to transform an unauthorized noncitizen in the U.S. into an individual with legal status. PIPsqueaking for the undocumented is a low-decibel measure that would position the undocumented to qualify for green cards through adjustment of status in the future under any of the otherwise available family- or employment-based immigrant visa categories. All that's required would be to grant PIP concurrently with another § 212(d)(5)(A) benefit known as "advance parole" and with the issuance of an employment authorization document or EAD. This would allow the undocumented to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required. A PIP/advance-parole/EAD three-step wouldn't fix everyone's status violations (it wouldn't absolve those who have accepted unauthorized employment unless they are the spouse of a citizen or otherwise fall within a forgiveness provision). But it would go a long way to help the undocumented live in this country, under humane conditions, by giving them a chance to earn a living, buy a house or car, purchase insurance and care for their kids. To its credit, the Obama Administration has approved PIP for citizens of the Commonwealth of the Northern Mariana Islands whose work permits would otherwise have expired. More broadly, just last week the President's immigration-benefits agency, U.S. Citizenship and Immigration Services (USCIS), to its credit, issued a policy memorandum authorizing PIP benefits for the undocumented relatives (parents, spouses and children) of "active members of the U.S. Armed Services, [as well as] individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve." USCIS approved PIP eligibility while mindful that active and former U.S. military personnel "face stress and anxiety because of the immigration status of their family members in the United States." Thus, the USCIS memo decreed:

Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.

The President's choices are clear. He. . . . can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.

Had he exercised more mojo than compromise on health care, he would have instead pushed for a simpler "Medicare for all" program that would not have required entanglement and enmeshment with insurance companies that cancel policies. Nor would he have needed a highfalutin web site for Americans seeking insurance to career through the myriad choices of coverage under the new health-care exchanges. Had he pushed on immigration reform earlier in his first term, he'd not be facing the dirge of mourners for the failure of comprehensive immigration reform today. America loves to give second chances. This is Barack Obama's. PIPsqueak your way to immigration salvation, Mr. President.

by Cyrus D. Mehta, ABIL Lawyer and Gary EndelmanThe Insightful Immigration BlogOn November 15, 2013, the USCIS issued a Policy Memorandum formalizing the granting of parole to persons who are present in the United States without admission or parole and who are spouses, children and parents of US citizens serving in the US military or who previously served in the US military. While parole traditionally applies to those who seek to come to the United States, the expansion of this concept to those already here is known as “parole in place”.According to this memo, military preparedness can be potentially adversely affected if active members of the military worry about the immigration status of their spouses, parents and children. The memo makes a similar commitment to veterans who have served and sacrificed for the nation, and who can face stress and anxiety because of the immigration status of their family members. Such persons can now formally apply for parole in place (PIP) through a formal procedure pursuant to the ability of the government to grant parole under INA section 212(d)(5)(A). PIP would allow them to adjust status in the US rather than travel abroad for consular processing of their immigrant visas and thus potentially triggering the 3 or 10 year bars.

As a quick background, an individual who is in the US without admission or parole cannot adjust status through an immediate relative such as a US citizen spouse, parent or son or daughter. This person is inherently inadmissible under INA section 212(a)(6)(A)(i), which provides:

An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

Section 212(a)(6)(A)(i) renders an alien inadmissible under two related grounds: 1) an alien present in the US without being admitted or paroled or 2) an alien who arrives in the United States at any time or place other than as designated by the Attorney General. The grant of PIP to a person who is present in the US without being admitted or paroled can wipe out the first ground of inadmissibility in section 212(a)(6)(A)(i). PIP would then also allow this person to adjust status in the US under section 245(a) - as the person needs to have been “inspected and admitted or paroled” – without needing to leave the US. The ability to adjust status through PIP would obviate the need to travel overseas and apply for the visa, and thus trigger the 3 or 10 year bar pursuant to INA section 212(a)(9)(B)(i) and (ii). Since there will be no departure triggering the 3 and 10 year bars, this person would no longer need to file a waiver or an advance provisional waiver by demonstrating extreme hardship to a qualifying US citizen relative to overcome the 3 and 10 year bars before leaving the US. So far so good, but how does one overcome the second ground of inadmissibility in section 212(a)(6)A)(i), which relates to “an alien who arrives in the United States at any time or place other than as designated by the Attorney General?” The memo skillfully interprets this clause as relating to an alien who is in the process of arriving in the US without inspection. Thus, the second ground only applies to an alien who is presently arriving in the US while the first ground applies to an alien who already arrived in the US without admission or parole. If the second ground is interpreted as applying to an alien who arrived in the past, then it would make the first ground superfluous, according to the memo. It would also then make the 3 year bar under INA section 212(a)(9)(B)(i) superfluous as a person who at any point arrived, if used in the past tense, at a place or time other than designated by the Secretary of Homeland Security would be permanently inadmissible rather than inadmissible for only 3 years. Thus, if the second ground of inadmissibility is no longer applicable with respect to an alien who has already arrived in the US, then the grant of PIP would allow such a person to adjust in the US by overcoming the first ground under INA section 212(a)(6)(A)(i). The extension of PIP to the families of current or former military service men and women is a proper recognition of their contribution to the nation and an attempt to benefit those who have given so much to the rest of us. While such logic is compelling, why not expand its application to other instances where aliens have served and strengthened the national interest or performed work in the national interest? How about granting PIP to families of, outstanding researchers striving to unlock the mysteries of science and technology, those with exceptional or extraordinary ability, and key employees of US companies doing important jobs for which qualified Americans cannot be found? And there is also a compelling interest in ensuring family unification so that US citizens or permanent residents may feel less stressed and can go on to have productive lives that will in turn help the nation. All such people do us proud by making our cause their own and the need of their loved ones to come in from the shadows is real and present. Indeed, the non-military use of PIP was advocated by top USCIS officials several years ago in a memo to USCIS Director Mayorkas, a memo leaked by its critics who wished successfully to kill it. In the face of inaction on the part of the GOP controlled House to enact immigration reform, granting PIP to all immediate relatives of US citizens would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the memo currently states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. What about INA section 245(c)(2)’s insistence on “lawful immigration status” at the snapshot moment of I-485 submission? Even this would not be a problem. For purposes of section 245(c) of the Act, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US. There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above. Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.” Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status, would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done. The holistic approach to parole for which we argue is a prime example of this second approach. The term “status” is not defined anywhere in the INA. By ordinary English usage, “parolee status” is a perfectly natural way of describing someone who has been paroled. Parole is a lawful status in the sense that, by virtue of the parole, it is lawful for the parolee to remain in the United States, at least for the authorized period of time under prescribed terms and conditions. We credit David Isaacson for suggesting that there are other instances in the INA where lawful status does not automatically equate to nonimmigrant status: for examples, asylum status under INA Section 208 and refugee status under INA section 207 are lawful statuses, even though strictly speaking, neither an asylee nor a refugee is a nonimmigrant according to the INA Section 101(a)(15) definition of that term. The Executive can easily revise the memo for military families to declare parole under INA section 212(d)(5) a status because it has already declared parole a lawful status for NA 245(c)(2) purposes under 8 C.F.R. 245(d)(v), asylum a lawful status under INA section 208, and refugee a lawful status under INA section 207. See 8 C.F.R. 245.1(d)(iii)-(iv). In all three cases, people are allowed into the United States in a capacity that is nether legal permanent residence nor, strictly speaking, nonimmigrant. True, INA section 101(a)(13)(B) does say that parolees are not “admitted”, but is one who enters without admission and is granted asylum under INA 208 ever been “admitted” per the statutory definition of that term? Yet, such a person has a lawful status.One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 and 10 year bars. Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the 3 or 10 year bars, as well as trying to overcome the bars by demonstrating extreme hardship to qualifying relatives, which is a very high standard. Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation. There is no doubt that the memo for military families is a meaningful example of immigration remediation through executive initiative. Yet, it is one step in what can and should be a much longer journey. In the face on intractable congressional resistance, we urge the President to take this next step.(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

The key word in the embassy report apparently is the term “relinquishment.” That means, a knowledgeable source told us, that she did not “formally renounce her U.S. citizenship under 349(a)(5) Immigration and Nationality Act, but took Swiss citizenship with the intent to lose her U.S. citizenship.” As opposed to formal renunciation — a much more complex process, we were told — there are no “tax or other penalties for loss of citizenship in this fashion.”

Unfortunately, there are several problems with this story.

Why did the U.S. embassy issue a report to the press about this? What happened to personal privacy? The Department of State is required by law to report the names of all expatriates to Internal Revenue Service, which publishes them quarterly in the Federal Register, but that is a far cry from issuing a report to the press about a celebrity.

Relinquishment, which is terminating U.S. citizenship based on proof that you have performed an expatriating act with the contemporaneous specific intent to expatriate, is generally more complex than renunciation, not less. A big trap for the unwary is using your U.S. passport for any purpose after the expatriating event. That contradicts the intent to relinquish that is required for the expatriating act to cause loss of citizenship.

The tax consequences of relinquishment are identical to those of renunciation. The effective date of relinquishment for tax purposes is the date you tell the U.S. government about it, not the date of the expatriating act, so it is not retroactive for tax purposes. An “exit tax” applies to most expatriates who have a net worth of $2 million or more, or who are not fully tax compliant.

There is a section of the immigration law that attempts to banish tax-motivated expatriates from the United States. When the Office of General Counsel of the former Immigration and Naturalization Service was asked to confirm that this section does not apply to relinquishment they said don’t count on it. The bills that Senators Reed and Schumer have introduced to expand the scope of this section apply equally to renunciation and relinquishment, and if passed they will be retroactive to expatriations with an effective date of 2008 or later.

So it is not correct to say that there are no "tax or other penalties for loss of citizenship" by relinquishment rather than renunciation. The penalties are the same either way.

The times they are a-mournin' for proponents of immigrant rights and immigration reform. While Pope Francis shows the world how to love by embracing and praying with a tumor-scarred man, immigrants-rights activists and immigration-reform pragmatists are at war among themselves over tactics in the battle to achieve just solutions to our nation's dysfunctional immigration problems. They who should be allies hurl vitriol and worse at one another, as Republicans in the House and outside the chamber say that even piecemeal solutions won't occur before the current session ends, but may surface in 14 months. Meanwhile, as the House fiddles and change-agents fuss, the "Great Chopper" that is America's immigration bureaucracy continues to disaggregate lives, businesses and dreams, turning them into mourning mush. No, I'm not talking about the immigration-prison/deportation industrial complex which whirs at grotesquely efficient and fevered speeds -- that topic is grist for another post. Rather, today's blog riffs on the theme of immigration inanity played out in my last post and in several others ("Immigration Good Behavior -- a Riddle Riddled with Riddles," "Immigration Absurdity: You Can Work Here But You Can't Be Here," and "Immigration Indifference - The Adjudicator's Curse"). Today's asininity is all about abandonment, an immigration-agency notion confected, mostly without stakeholder input, by work-shirking bureaucrats rather than through the orderly, judicially-envisioned modus operandi of enacted legislation and promulgated regulations. Immigration abandonment holds that a foreign entrant who applies to extend or change nonimmigrant visa status in the U.S., and who has paid almost 300 bucks in filing fees just to make the ask, will not receive a decision on the merits but instead be peremptorily denied if s/he leaves the U.S. before an often dilatory adjudicator gets around to considering the application. Immigration abandonment also plays out in the process of applying for a green card. Although the latter form of short-changing is moistened with the sprinkled holy water of an actual agency regulation (8 CFR § 245.2(a)(4)(ii)(A)-(D)), an adjustment of status applicant -- like his nonimmigrant cousin -- is still treated as having relinquished the desire to become a permanent resident if s/he leaves the U.S., however temporarily, without special dispensation, notwithstanding that the departing individual has no desire to forswear permanent residence and despite the payment of up to $2,070 in application fees. In the case of the green card applicant, immigration abandonment can lead -- at best -- to delay and squandered filing fees, and -- at worst -- to ineligibility. The immigrant visa quota may have closed or retrogressed in the interim, thereby precluding immediate reapplication for adjustment of status. Or, the factual basis or legal grounds to adjust status may no longer exist; the American Dream of permanent U.S. residence and ultimately citizenship thus evaporating into the ether created by work-avoidant immigration officials. The consequences may be equally or more tragic in the nonimmigrant context whenever a temporary entrant seeks to extend/change visa status in the United States but needs to depart the U.S. while the application is pending. To understand why, the reader must first consider the supposed rationale and contorted logic served up by U.S. Citizenship and Immigration Services (USCIS) in this typical formulation:

The astute reader will have noted some whopping non sequiturs in the USCIS's explanation. Submission of either a timely request to extend/change status or an untimely request caused by extraordinary circumstances beyond the applicant's control (as permitted by regulation) is a reflection of behavior demonstrating a desire and intent to play by, rather than flout, the rules. Moreover, departing the U.S. need not necessarily be construed as a failure to maintain the "previously accorded nonimmigrant status." It may signify nothing more or less than a departure from the country. What the USCIS's immigration-abandonment ploy really reveals is an agency's acceptance of money under false pretenses in return for a promised service (the adjudication of a request for an immigration benefit) that is never delivered. Some would call that fraud. It is worse than fraud, however, because it also involves a waste of government resources and the utter disregard of a very relevant statute. The statute is Immigration and Nationality Act § 212(a)(9)(B)(iv) [8 U.S. Code §1182(a)(9)(B)(iv)]. This law allows a law-abiding foreign citizen to avoid temporarily the imposition of the penalties of visa voidance and the three- and ten-year bars to reentry for his or her "unlawful presence (UP)" in the United States. UP arises when an individual stays in the country longer than officially permitted, as specified in a government document containing a date-certain deadline imposed by the Attorney General or his statutory successor, the Secretary of Homeland Security. This statutory postponement or "tolling" of any period of UP is allowed in the following situation:

Tolling for good cause.-- In the case of an alien who-- has been lawfully admitted or paroled into the United States, has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General [or Secretary of Homeland Security], and has not been employed without authorization in the United States before or during the pendency of such application, [then] the calculation of the period of [UP] time specified . . . shall be tolled during the pendency of such application, but not to exceed 120 days.

When USCIS takes money without providing a decision on the merits of the change or extension of status application, then a consular officer deciding whether to issue or refuse a nonimmigrant or immigrant visa must do what the USCIS adjudicator failed to do. The consular officer must determine whether the change/extension of status application was in fact "nonfrivolous" in order for UP to be tolled. The failure of one officer to do his or her duty thus engenders government waste when another officer in a different department must deploy scarce resources and review the application (for no additional fee). Had the USCIS not relied on the immigration-abandonment notion as a way to shirk work, and had the adjudicator approved the application, the approval would essentially confirm that the application to extend or change status was indeed "nonfrivolous," as that term is defined:

To be considered nonfrivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status). To find an application nonfrivolous, it is not necessary to determine that the INS [USCIS] would have ultimately ruled in favor of the alien.9 Department of State Foreign Affairs Manual § 40.92 N5 “Tolling” for Good Cause

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So, no matter whether Congress dithers and dallies, and reformers on the left bicker and bite, the USCIS -- the adjudicative arm of the Great Chopper -- must be retooled. The agency must do its job and decide applications for which fees have been fully paid on their merits. USCIS must abandon immigration abandonment.

Charles Kuck, ABIL PresidentMusings on ImmigrationBelief is a powerful, motivating force. A force that can literally compel action, both for good or evil. For me, knowledge of and belief in a power greater than myself motivates virtually all that I do. I believe that we have a responsibility as human beings to be kind to others, to assist when able, to lift when necessary, and to reach out when required. As lawyers, and particularly as immigration lawyers, I believe that the need for the actions of assisting, lifting and reaching out are even more acute. We live in a time of great political turmoil. Regardless of which of the major political parties with which you affiliate, we can all acknowledge that not enough is being done, not only by the government, but by society in general, to lift the lives of our fellow citizens. Part of the reason we see this failing by government and by ourselves is that many people demonize “the others,” seeking to blame “the others” for the problems with which they themselves have to deal. As a result, the topic of “Immigration” has become a great political lightening rod, a catalyst for debate on the evils versus the good of “the others.” The debate on immigration reform has sharpened the line between those who are distrustful, and perhaps even afraid ofnew immigrants, and those who believe that immigration is good for our society and our country. What I have observed over that last several years is that most of us love the individual immigrant; the one who has benefited us with scientific discoveries, or has helped in our yards, or with our children. Concerns seem to come when more than one of these favored immigrants congregates with others and creates an impact on the local community. Is this not the very definition of fear? Being afraid of what is new, being concerned with change to who we are as a country? Fortunately, we are a country that always seems to overcome these bouts of xenophobia, with an increased tolerance of, and perhaps even a greater affection for immigrants. We honor and revere those immigrants who came before during those times of great waves of immigration, but as a society we typically fail to recognize at the time it happens, the net benefits that come to America with those who seek to share with us in this great American Experiment.I believe, and so remain optimistic that soon, as a country, we will come to the realization that immigration is not the cause of our myriad problems, but rather, one of the important solutions. I believe we will soon come to our senses as a country and understand that by fixing our immigration system, both by adjusting the legal aspects that merit reform, and by forgiving those who have forged a future in this country through their hard labor, we will resume our path forward. More importantly, we will do so without demonizing millions of people for choosing to improve their lives. These same people who entered into and lived in the United States with the tacit approval of the government, should, in fact, pay a price for disobeying the law, but with the understanding that they have and will contribute to this country. I believe that we as immigration lawyers have a very specific obligation to help shape the public debate, clear up misunderstandings, and clarify for the American people the realities of our immigration system. This must be done not only through the media, but through reaching to our neighbors, and our friends. The voices of the anti-immigration movement, like all other negative cries, are easily heard and believed. Compare it to negative political advertising—scare tactics. These are used because they work. It is much harder to get a positive message across. Yet, I believe that such a positive message is one most Americans yearn to hear and understand. We have the obligation to spread that positive message. I also believe we have an affirmative and very substantial obligation to assist the immigrant. We have to reach out; we have to assist, we have to lift up our clients. How we act on behalf of a client, how hard we try, how bold we are in their defense is the lesson that our client will pay forward as she becomes part of the great American Experiment.Ultimately, I believe that being an Immigration Lawyer is more than a career choice, or an area of law to practice. I believe it is a calling, one that each of us who are immigration lawyers has chosen. One that actually changes lives and affects the courses of life of millions of Americans for generations to come. I believe that service to our fellow man, as immigration lawyers, is simply service to our own belief in the greater powers to which we each individually answer.

Samuel Herbert, Her Majesty's Home Secretary from 1931-32 (the British equivalent of the U.S. Secretary of Homeland Security), could well have been speaking about two recent immigration-related events when he quipped that "bureaucracy" is "a difficulty for every solution." One is an October 30 Settlement Agreement between Indian It consulting giant, Infosys, and the U.S. Attorney for the Eastern District of Texas. The other is an October 18 decision by U.S. federal district court judge, William J. Martini, involving the U.S. Department of Labor (DOL) and CAMO Technologies, a much smaller Indian IT consulting firm. Both reflect a victory, of sorts, for Indian IT firms over U.S. immigration bureaucrats and enforcement agents, and both shed light on the little-discussed crossroads where ambiguous immigration rules bisect the relations between corporate customers and their technology consultants. The Infosys settlement involved a simple horse trade. Infosys would pony up $34 million and admit paperwork violations of the Form I-9 (employment eligibility verification) rules while the U.S. Attorney would drop civil and criminal charges that the Tech firm -- when placing its Indian employees at U.S. customer work sites -- improperly used the B-1 business-visitor visa in lieu of the more costly, slow and burdensome H-1B visa category for professional workers in specialty occupations.CAMO Technologies resolved a dispute with DOL over whether the company was merely negligent (the court so ruling) or willful or reckless in failing to confirm that its corporate customers had posted notices at their worksites that the consulting firm's H-1B employees would be sited there. Why did the U.S. Attorney drop civil and most criminal charges against Infosys when the prosecutor believed the company had engaged in widespread immigration fraud? And why did Judge Martini throw a cold cocktail in the DOL's face in refusing to debar CAMO from further use of the immigration laws to sponsor temporary workers and green-card aspirants? Technologies, Inc. The simple answer is that immigration laws are complex and the bureaucratic rules interpreting them are too often ambiguous or impractical and therefore difficult to honor or to prosecute. In the Infosys matter, prosecutors probably could not prove that "coding and programming" tasks, which ordinarily require an H-1B work visa, would be unlawful if performed by a business visitor under the so-called BILOH (B-1 in lieu of H-1) subcategory. In CAMO Technologies, the DOL could not persuade the court of its contention that the failure to post notices announcing the placement of H-1B workers at customer sites violated the agency's regulations. CAMO maintained that the DOL regulations only required proof that the vendor had asked its customers to allow posting but that the customers refused. The customer-vendor relationship is fraught with immigration perils for both parties, as I noted in two articles co-authored with Ted Chiappari,“New Corporate Procurement Strategy: Minimizing Immigration Risks From Service Providers," New York Law Journal (June 29, 2009) and "Professional Employer Organizations and Uncharted Immigration Risks," New York Law Journal (December, 2010). But despite the lack of clarity or business practicality from bureaucratically imposed visa mandates, employers and corporate vendors can take steps to avoid brand-damaging assaults by enforcement agents and costly probes by DOL investigators. Here are four:

Try, together, to follow the rules. Most corporate customers are astonished to learn that the law of vendor relations often imposes immigration-law encumbrances -- the obligation to post notices visible to their employees at the company's worksite or on its intranet and to respond accurately when vendors ask if there have been any layoffs of the customer's employees. Yet, DOL rules are explicit. All employers who place H-1B workers at customer sites must post such notices and H-1B dependent employers must inquire about such layoffs and refrain from assigning their specialty-occupation workers to customer jobsites if the customer has laid off its own workers in similar jobs within 90 days before until 90 days after a subject layoffs. While the posting obligation imposes no penalty on corporate customers under DOL H-1B regulations, the Immigration and Nationality Act (INA) does, as confirmed in this DOL presentation, “The Employment of Non-Immigrants on H-1B Visas” (slides 42-43), the INA provides for "Super Penalty" fines of $35,000 on customers and H-1B dependent vendors alike each time a prohibited layoff occurs. Whether customers are immune or directly exposed to their vendors' H-1B liabilities, customers should cooperate to allow service providers to comply with immigration requirements. If the customer interferes or fails to cooperate, the vendor conceivably could claim that the customer impeded the vendor's performance under the parties' service agreement by blocking or rendering impossible the vendor's compliance with immigration law. Worse yet, the federal government could assert that the vendor and customer, both aware of their respective legal duties, willfully flouted them, and thus criminally conspired to employ "unauthorized" foreign workers.

Where the immigration rules are ambiguous or unworkable, show good-faith efforts that substantially comply. As the Infosys and CAMO Technologies matters demonstrate, some government investigations and prosecutions can be defeated or their adverse effects diminished by pointing out flaws or uncertainties in the immigration rules or by trying to comply substantially with impractical or infeasible agency-concocted requirements. Perhaps a vendor could post electronic notices of H-1B placements on its public corporate web site, and merely post "routing" notices at customer locations directing persons to the vendor's internet page where the legally required text is fully provided. That may be seen by an administrative law judge or federal court as doing more than legally mandated and thus in substantial compliance with agency rules.

Where the immigration rules are downright unlawful, challenge them in court or be prepared to defend your behavior and legal interpretations if the government takes action. Camo Technologies persuaded Judge Martini to reverse the DOL's ruling against the company. Infosys presumably adopted a full-court press by mounting a campaign in the U.S. Attorney's Office to demonstrate the weakness of the government's legal position and in reminding local, state and federal government leaders that prosecution of this large Indian company could hurt jobs and the economy. In simple terms, both companies fought back. Corporate customers and consultants should copy maneuvers from this playbook. The immigration rules of the road are mind-bendingly complex. Government prosecutors, unschooled in the arcana of immigration, must rely on immigration bureaucrats to teach them the law, the same agency employees who created and imposed the ambiguities and impracticalities that customers and contractors are expected to follow.

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As the battle continues for ever greater corporate efficiency and profitability, fueled by the innovations and bright ideas of the consulting industry, customers and vendors alike must recognize that their business objectives can be waylaid by zealous prosecutors and bureaucrats. Forewarned is forearmed. Don't wait for the knock on the door. Be ready to face "the difficulty for every solution."

by Cyrus D. Mehta, ABIL LawyerThe Insightful Immigration BlogInfosys is one of India’s most storied IT companies with a roster of impressive clients in the US, including named Wall Street Banks, Silicon Valley companies, retail chains, insurance companies and manufacturers. With a footprint all over the world and known for its integrity and probity, it thus came as a surprise that the United States accused Infosys of malfeasance in procuring visas for its foreign national employees to come to the US. The US Attorney’s Office for the Eastern District of Texas, in conjunction with the Department of Homeland Security, launched an investigation in 2011 into Infosys’s alleged misuse of B-1 business visas. The investigation was spurred by a whistleblower’s law suit that made similar allegations, which got dismissed. On October 30, 2013, Infosys reached a settlement agreeing to pay a civil fine of $34 million to the US government, the biggest fine ever paid for an immigration case, but did not admit to the allegations of fraud and malfeasance. There are plenty of lessons one can take away from the Settlement Agreement upon an objective review. Despite the seriousness of the allegations, Infosys did not incur any criminal liability. For instance, the government accused, among other things, the IT giant for bringing its employees on B-1 business visas to the United States to actually perform work. The government further accused Infosys of generating invitation letters to US consular officials indicating that their purpose of travel was for “meetings” and “discussion” when the true purpose was to work in the US, which can only be performed under the more onerous H-1B visa, such as coding and programming. Infosys, on the other hand, countered that it has always used the B-1 visa for legitimate purposes and not to circumvent the H-1B visa. Infosys also stated that the Department of State’s Foreign Affairs Manual permits other activities under the B-1 visa provided that they are incident to international trade or commerce, including those alleged by the US to be improper, such as coding and programming. The government also accused Infosys of directing its employees to misrepresent that they would be performing work at the location stated on the Labor Condition Application (LCA) underlying the H-1B visa petition, when they would actually be going to work at another location. Infosys also denied this accusation. Infosys, however, admitted to violations concerning its obligations to verify employees on form I-9. Still, despite the denial of any fraud or malfeasance, Infosys paid a humongous fine of $34 million. It was indeed the ambiguity in the B-1 rules that snared Infosys and it was the same ambiguity in the B-1, which ultimately saved it from criminal liability. This is evident in the statement of the lead prosecutor in the case, Shamoil Shipchandler, who is quoted in a Wall Street Journal article:

“It’s not 100% clear what someone who holds a B-1 visa can actually do,” he said. For example, placing someone within a company for six months to do in-house tech support is an improper use of a B-1 visa. But if a consultant helps refine software during a meeting with a client, as part of a larger project, that could be seen as an appropriate use of a visitor visa, Mr. Shipchandler said. “It’s a murky area, but for our purposes they misled consular officials.”

As we noted in a prior blog on the B-1 category, the B-1 business visa remains one of the “most ill-defined” visas but plays a very important role in providing flexibility to business travelers. While the B-1 visa is associated with visiting the US to participate in meetings and negotiate contracts, it can have broader purposes. For example, the “B-1 in lieu of H-1B” was created to facilitate travel to the US of individuals who would otherwise qualify for an H-1B visa, but only needed to come to the United States for a limited period of time. In the current controversy over the B-1 visa, scant attention has been paid to the “B-1 in lieu of the H-1B,” which permits broader activities than the regular B-1 visa, albeit for a short period of time. Indeed, many of the activities that have been alleged to be outside the scope of the B-1 may be permissible under the “B-1 in lieu of the H-1B.” The case law with respect to business visitors only adds to the confusion over the definition of “business” in the US. In Matter of Hira, 11 I. & N. Dec. 824, the Board of Immigration Appeals (BIA) held that the term “business” does not include ordinary labor for hire, but is limited to intercourse of a commercial character. The BIA concluded that an alien entering with a B-1 visa to “study the US business market”, who on behalf of his employer (a Hong Kong based manufacturer of custom made men’s clothing), took orders from, and the measurements of, prospective customers in the United States whom he did not solicit; and who then sent the orders, together with the purchase price, to his employer overseas, was engaged in “intercourse of a commercial character,” and was eligible for B-1 visitor for business classification. The BIA specifically stated that Hira’s sojourn in the US was of a “temporary character” and he clearly intended to continue his foreign residence at the termination of his authorized stay. The profits of Hira’s B-1 activities also accrued to the foreign entity. The BIA, however, also clarified that the nature of the business activity itself need not be temporary. The BIA held that for B-1 purposes, the business relationship may be of a continuing or long standing nature. The only condition in this respect is that each visit be temporary in duration. While applicants can make their best case under the ambiguous standards of the B-1 visa in a forthright manner, deception and malfeasance can never be tolerated.Even though Infosys is allowed to continue to access US visas in the future under the settlement, which also expressly ensures that past investigations or alleged wrongful conduct will not be used to prejudice future applications, this episode is a wakeup call for others to ensure that corporations exercise good governance with respect to immigration matters. There is bound to be stricter scrutiny in the future of all applicants, and there is little doubt that Congress in future legislation may also use the Infosys example to tighten the ability for IT consulting firms to access business and work visas, as it has already accomplished in S. 744. Still, this episode can prove to be a valuable teaching moment for Infosys and other IT consulting firms. One of the conditions under the settlement agreement is that Infosys will provide more detailed description of the activities that will be performed when an applicant applies for a B-1 visa. As the B-1 visa allows a wide range of permissible activities, a best industry practice can evolve to specify the proposed activities in some detail, and the legal basis for them, when applicants apply for a B-1 visa or at the time of seeking admission at a port of entry. As a quid pro quo, it is hoped that the government will also seriously adjudicate such applications on their merits. The work location indicated in the LCAs of H-1B workers in the IT consulting industry are also bound to change after the initial filing. Interestingly, the settlement agreement does not suggest that the employer file an amended H-1B petition, and instead, only alleged that Infosys did not submit a new LCA covering the new location. In the future, employers should immediately file new LCAs to cover the new locations after the original location has changed, and make disclosure at the time of applying for a visa or at the port of entry. It may also be prudent for the employer to proactively file LCAs in future anticipated locations, whenever feasible, in case there is a change in the work location, thus obviating the need to submit one after the H-1B petition is already approved. It is further hoped that the government will not insist on the more cumbersome and expensive H-1B amendment, which was not suggested in the settlement agreement. It goes without saying that employers must also be compliant with their I-9 obligations. While there have been no dearth in enforcement actions for I-9 violations, the action against Infosys was novel as it involved allegations of misuse of the B-1 visa in addition to the I-9 violations, while Infosys countered by saying that its use of the B-1 was proper. Despite the settlement, the scope of the B-1 visa continues to remain ambiguous, although it would behoove employers to articulate the reasons for the B-1 visa in an application and then to have their employees abide by the terms and conditions upon visiting the US. As noted in a prior blog, it is important too for the end user client company to be vigilant to ensure that foreign national workers assigned to the company are working under the appropriate visa categories. In the event that the end user client has knowledge or encourages activities not authorized under these visa categories, there is potential for the company to be ensnared in criminal liability. Even short of criminal liability, it is important to make sure due diligence has been done to avoid being caught up in an embarrassing investigation against a partner company. If the end user company urgently needs software engineers through its IT contracting company for a project, a manager within the end user company may be requested to write a let­ter as a client of the contracting compa­ny to justify the need for its employee overseas to visit the US on a B-1 visa. If this letter indicates that the software engineer is required for meetings, or to conduct an analysis of the project to be subsequently worked on overseas (an obviously per­missible B-1 activity), but the actual pur­pose is for the engineer to actually par­ticipate in programming and working on the solution in the U.S., it may come back to haunt the end user company if there is a criminal investigation against the IT contracting company. Therefore, when drafting such a letter, it is important to ensure that the proposed activities discussed in the letter are per­missible B-1 activities, and when the foreign national arrives, he or she engages in activities that are consistent with the listed activities. Of course, if the foreign national is assigned to perform work at the client company, the end user must ensure that the worker has an appropriate work visa such as the H-1B visa. End user clients must cooperate with the sponsoring employer to post the LCA at their sites. Some years ago Wal-Mart was criminally investigated for engaging janitors as independent contractors when it knew that they were not authorized to work in the US. The investigation ended with a consent decree in 2005 where Wal-Mart like Infosys did not also acknowledge any wrong doing, although the practices that have emerged from that episode with respect to ensuring that even employees of independent contracting companies have I-9s have become the gold standard. While its reputation has taken a beating - not to mention that Indian heritage IT firms even if compliant have borne the brunt of intense governmental scrutiny in recent years - Infosys also has the opportunity to develop gold standard best practices in the B-1 and other arenas (such as tracking work sites of their employees under the LCA) to not only comply with the terms of the settlement but to also assure its prestigious clients who must be anxious after the settlement. Infosys should consider itself fortunate that it did not go down in flames like Enron or Anderson, and has been given another chance. It must seize this opportunity to redeem itself by elevating standards and best practices, which others will follow and which the government will hopefully honor. In conclusion, the following quote from US Attorney for the Eastern District of Texas is worth noting:

“Infosys persuaded me and our partners that they could be fully fledged legal participants in the immigration process of the United States, so we'll see," Bales said. He added that Infosys hired American workers and was valuable to the American economy, and "we're not in the business of putting people out of business when they provide value.”